Tuesday, July 23, 2013

Madras HC. Father gets MINOR 2yr old child custody EVEN when wife dead. Originally NO allegations vs father. Later on complaint by wife's father case regustered against father a service man who is arrested and then released on bail !! Once released on bail he seeks custody of kid !! and wins custody !!


Madras HC says "...The petitioner being the father and natural guardian, we are of the considered opinion that the custody of his minor daughter should be entrusted to him against the in-laws. Under such circumstances, the detenue is directed to be entrusted with the petitioner...."


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS DOT NIC DOT IN SITE 

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 28/10/2009

CORAM
THE HONOURABLE MR.JUSTICE R.REGUPATHI
and
THE HONOURABLE MR.JUSTICE R.SUBBIAH

Habeas Corpus Petition (MD) No.749 of 2009

R.Sivakumar ... Petitioner
vs.

1.The Superintendent of Police,
  Theni District,
  Theni.

2.The Inspector of Police,
  Veerapandi Police Station,
  Theni.

3.A.Ramasamy

4.Adilakhmi ... Respondents

Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus,  to direct the respondents to produce the body of the petitioner's daughter by name minor Nandanashri age 2 years and set her at liberty by handing over the daughter of the petitioner to him forth with.

!For Petitioner            ..  Mr.Veera.Kathiravan

^For Respondents 1 and 2   ..  Mr.S.P.Samuel Raj,
      Additional Public Prosecutor.

For Respondents 3&4   .. Mr.R.R.Kannan

:ORDER

(Order of the Court was made by R.REGUPATHI,J.)

The petitioner, who is the father of the detenu, a female child aged about 2 years seeks for a direction to secure his daughter from Respondents 3 and 4 and hand her over to him. It is alleged in the affidavit that a false case has been foisted on the petitioner after his wife committed suicide on 22.09.2009; that the suicide note recovered by the police from the body of the deceased contains allegations only as against respondents 3 and 4; and that though initially a case has been registered under Section 171 Cr.P.C., subsequently without any basis, it came to be altered as one under Sections 498-A and 306 IPC.

2.Learned counsel for the petitioner submits that the petitioner is serving in the Military and, being a father and natural guardian of the detenue, he is entitled to the custody of the minor child. Under the guise of performing rituals, the detenue was taken away by respondents 3 and 4 and, in the meantime, the petitioner was arrested and, soon after coming out on bail on 13.10.2009, when he sought for custody of the detenue, it was refused, resulting in filing of the Habeas Corpus Petition.

3.Per contra, learned counsel for respondents 3 and 4 submits that a complaint has been preferred against the petitioner and there are prima facie materials to substantiate the offences under Sections 498-A and 306 IPC. Pending investigation of the case, if custody of the minor child is entrusted with the petitioner, great prejudice would be caused, for the petitioner may utilise such a situation for withdrawal of the case itself by advancing threat; therefore, the custody of the child with R-3 and R-4 need not be disturbed.

4.Learned Additional Public Prosecutor submits that, on the strength of the complaint given by the third respondent, a case in Crime No.355 of 2009 was taken on file by the second respondent under Section 174 Cr.P.C., and Subsequently, it was altered as one under Sections 498-A and 306 IPC. Pending investigation, the petitioner was arrested and, in view of pendency of the Habeas Corpus Petition before this Court, the detenue has been produced.

5.We have heard the submissions made on either side and perused the materials placed on record.

6.The detenue, being a child of tender age, could not be enquired. However, on perusal of the suicide note of the deceased recovered during investigation of the case, it appears that allegations have been made only as against respondents 3 and 4 and no grievance is projected against the petitioner. It is also seen that the case has been registered only on the strength of the complaint given by the third respondent. The suicide note recovered from the person of the deceased viz., wife of the petitioner, would amount to a dying declaration and in the absence of any contra material against the petitioner, the same could be taken only as a positive material in favour of the petitioner. The petitioner being the father and natural guardian, we are of the considered opinion that the custody of his minor daughter should be entrusted to him against the in-laws. Under such circumstances, the detenue is directed to be entrusted with the petitioner.

7.Accordingly, the Habeas Corpus Petition is ordered.

sms

To:
1.The Superintendent of Police,
  Theni District,
  Theni.

2.The Inspector of Police,
  Veerapandi Police Station,
  Theni